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Manish M. BhagnariB.Com. & LL.B.
Understanding Patents - For Educational Purposes Only
Introduction to Patents
What is a patent?
A patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem.
A patent provides protection for the invention to the owner of the patent. The protection is granted for a limited period, generally 20 years.
A patent is an exclusive right granted by the State for an invention that is new, involves an inventive step and is capable of industrial application.
It gives its owner the exclusive right to prevent or stop others from making, using, offering for sale, selling or importing a product or a process, based on the patented invention, without the owner’s prior permission. A patent is a powerful business tool for companies to gain exclusivity over a new product orprocess, develop a strong market position and earn additional revenues through licensing.A complex product (such as a camera, mobile phone, or a car) may incorporate a number of inventions that are covered by several patents, which may be owned by different patent holders.
A patent is granted by the national patent office of a country or a regional patent office for a group of countries. It is valid for a limited period of time, generally for 20 years from the date of filing of the patent application, provided the required maintenance fees are paid on time. A patent is a territorial right, limited to the geographical boundary of the relevant country or region.
In return for the exclusive right provided by a patent, the applicant is required to disclose the invention to the public by providing a detailed, accurate and complete written description of the invention in the patent application. The granted patent and, in many countries, the patent application is made public via publication in an official journal or gazette.
To sum up, a patent is a document, issued, upon application, by a government office (or a regional office acting for several countries), which describes an invention and creates a legal situation in which the patented invention can normally only be exploited (manufactured, used, sold, imported) with the authorization of the owner of the patent. “Invention” means a solution to a specific problem in the field of technology. An invention may relate to a product or a process. The protection conferred by the patent is limited in time (generally 20 years).
Simply put, a patent is the right granted by the State to an inventor to exclude others from commercially exploiting the invention for a limited period, in return for the disclosure of the invention, so that others may gain the benefit of the invention. The disclosure of the invention is thus an important consideration in any patent granting procedure.
What is an invention?
In patent jargon, an invention is generally defined as a new and inventive solution to a technical problem. It may relate to the creation of an entirely new device, product, method or process, or may simply be an incremental improvement to a known product or process. Merely finding something that already exists in nature generally does not qualify as an invention; an adequate amount of human ingenuity, creativity and inventiveness must be involved.
While most inventions nowadays are the result of considerable efforts and long-term investments in Research and Development (R&D), many simple and inexpensive technical improvements, of great market value, have yielded significant income and profits to their inventors or companies.
What kind of protection does a patent offer?
Patent protection means that the invention cannot be commercially made, used, distributed or sold without the patent owner’s consent. These patent rights are usually enforced in a court, which, in most systems, holds the authority to stop patent infringement. Conversely, a court can also declare a patent invalid upon a successful challenge by a third party.
What rights does a patent owner have?
A patent owner has the right to decide who may – or may not – use the patented invention for the period in which the invention is protected. The patent owner may give permission to, or license, other parties to use the invention on mutually agreed terms. The owner may also sell the right to the invention to someone else, who will then become the new owner of the patent. Once a patent expires, the protection ends, and an invention enters the public domain, that is, the owner no longer holds exclusive rights to the invention, which becomes available to commercial exploitation by others.
Why are patents necessary?
Patents provide incentives to individuals by offering them recognition for their creativity and material reward for their marketable inventions. These incentives encourage innovation, whichn assures that the quality of human life is continuously enhanced.
What role do patents play in everyday life?
Patented inventions have, in fact, pervaded every aspect of human life, from electric lighting (patents held by Edison and Swan) and plastic (patents held by Baekeland), to ballpoint pens (patents held by Biro) and microprocessors (patents held by Intel, for example).
All patent owners are obliged, in return for patent protection, to publicly disclose information on their invention in order to enrich the total body of technical knowledge in the world. Such an ever-increasing body of public knowledge promotes further creativity and innovation in others. In this way, patents provide not only protection for the owner but valuable information and inspiration for future generations of researchers and inventors.
What kinds of inventions can be protected?
An invention must, in general, fulfill the following conditions to be protected by a patent. It must be of practical use; it must show an element of novelty, that is, some new characteristic that is not known in the body of existing knowledge in its technical field.
This body of existing knowledge is called “prior art”. The invention must show an inventive step that could not be deduced by a person with average knowledge of the technical field. Finally, its subject matter must be accepted as “patentable” under law. In many countries, scientific theories, mathematical methods, plant or animal varieties, discoveries of natural substances, commercial methods, or methods for medical treatment (as opposed to medical products) are generally not patentable.
Condtions of Patentability – An invention must meet several criteria if it is to be eligible for patent protection. These include, most significantly, that the invention must consist of patentable subject matter, the invention must be industrially applicable (useful), it must be new (novel), it must exhibit a sufficient “inventive step” (be non-obvious), and the disclosure of the invention in the patent application must meet certain standards.
Industrial Applicability (Utility) – An invention, in order to be patentable, must be of a kind which can be applied for practical purposes, not be purely theoretical. If the invention is intended to be a product or part of a product, it should be possible to make that product. And if the invention is intended to be a process or part of a process, it should be possible to carry that process out or “use” it (the general term) in practice.
“Applicability” and “industrial applicability” are expressions reflecting, respectively, the possibility of making and manufacturing in practice, and that of carrying out or using in practice.
The term “industrial” should be considered in its broadest sense, including any kind of industry. In common language, an “industrial” activity means a technical activity on a certain scale, and the “industrial” applicability of an invention means the application (making use) of an invention by technical means on a certain scale.
Novelty – Novelty is a fundamental requirement in any examination as to substance and is an undisputed condition of patentability. It must be emphasized, however, that novelty is not something which can be proved or established; only its absence can be proved.
An invention is new if it is not anticipated by the prior art. “Prior art” is, in general, all the knowledge that existed prior to the relevant filing or priority date of a patent application, whether it existed by way of written or oral disclosure.
The question of what should constitute “prior art” at a given time is one which has been the subject of some debate. It should be noted that in considering novelty, it is not permissible to combine separate items of prior art together.
Inventive Step (Non-Obviousness) – In relation to the requirement of inventive step (also referred to as “non-obviousness”), the question as to whether or not the invention “would have been obvious to a person having ordinary skill in the art” is perhaps the most difficult of the standards to determine in the examination as to substance.
The inclusion of a requirement like this in patent legislation is based on the premise that protection should not be given to what is already known as part of the prior art, or to anything that the person with ordinary skill could deduce as an obvious consequence thereof.
The expression “ordinary skill” is intended to exclude the “best” expert that can be found. It is intended that the person be limited to one having the average level of skill reached in the field in the country concerned.
It should be noted that novelty and inventive step are different criteria. Novelty exists if there is any difference between the invention and the prior art.
The question, “is there inventive step?” only arises if there is novelty. The expression “inventive step” conveys the idea that it is not enough that the claimed invention is new, that is, different from what exists in the state of the art, but that this difference must have two characteristics –
Firstly, it must be “inventive”, that is, the result of a creative idea, and it must be a step, that is, it must be noticeable. There must be a clearly identifiable difference between the state of the art and the claimed invention. This is why, in some jurisdictions, there is the concept of an “advance” or “progress” over the prior art.
Secondly, it is required that this advance or progress be significant and essential to the invention.
Disclosure of the Invention – An additional requirement of patentability is whether or not the invention is sufficiently disclosed in the application. The application must disclose the invention in a manner sufficiently clear for the invention to be carried out by a person skilled in the art. The description should set out at least one mode for carrying out the invention claimed. This should be done in terms of examples, where appropriate, and with reference to the drawings, if any.
What is Patentable Subject Matter?
order to be eligible for patent protection, an invention must fall
within the scope of patentable subject matter. Patentable subject
matter is established by statute, and is usually defined in terms of
the exceptions to patentability, the general rule being that patent
protection shall be available for inventions in all fields of
matter which may be excluded from patentability includes the
discoveries of materials or substances already existing in nature;
scientific theories or mathematical methods;
and animals other than microorganisms, and essentially biological
the production of plants and animals, other than non-biological and
microbiological processes; schemes,
rules or methods, such as those for doing business, performing purely
acts or playing games;
methods of treatment for humans or animals, or diagnostic methods practiced on humans or animals (but not products for use in such methods).
Inventions which are not patentable
Yes, according to The Patents Act, 1970 the following inventions are not patentable:
1. Frivolous or claiming anything obviously contrary to established natural laws.
2. Contrary to public order or morality or prejudicial to life or environment.
3. Discovery of scientific principle or formulation or discovery of living or non-living substance.
4. Discovery of new form or property or use of a known substance or of a new use of a known process or machine or an apparatus not resulting in a new product.
5. Substance obtained from admixture of known components resulting in only aggregation of their properties.
6. Mere rearrangement or duplication of known devices.
7. A method of agriculture or horticulture.
8. Medical treatment or procedure of humans or of animals.
10. Plants or animals or seeds and biological process of production or prorogation of these.
11. Mathematical or business method or computer programme or algorithm.
12. Artistic or aesthetic creation like literary or dramatic or musical or cinematographic or television production.
13. Scheme or rule or method of performing any mental act or of a game.
14. Presentation of information.
15. Topography of integrated circuits.
16. Aggregation or duplication of known properties of components.
17. Inventions relating to atomic energy.
How is a Patent Granted?
The first step in securing a patent is the filing of a patent application. The patent application generally contains the title of the invention, as well as an indication of its technical field; it must include the background and a description of the invention, in clear language and enough detail that an individual with an average understanding of the field could use or reproduce the invention. Such descriptions are usually accompanied by visual materials such as drawings, plans, or diagrams to better describe the invention. The application also contains various "claims", that is, information which determines the extent of protection granted by the patent.
Who grants patents?
A patent is granted by a national patent office or by a regional office that does the work for a number of countries, such as the European Patent Office (EPO) and the African Intellectual Property Organization (OAPI). Under such regional systems, an applicant requests protection for the invention in one or more countries, and each country decides as to whether to offer patent protection within its borders. The WIPO-administered Patent Cooperation Treaty (PCT) provides for the filing of a single international patent application which has the same effect as national applications filed in the designated countries. An applicant seeking protection may file one application and request protection in as many signatory states as needed.
How can a patent be obtained worldwide?
At present, no “world patents” or “international patents” exist. In general, an application for a patent must be filed, and a patent shall be granted and enforced, in each country in which you seek patent protection for your invention, in accordance with the law of that country. In some regions, a regional patent office, for example, the European Patent Office (EPO) and the African Regional Intellectual Property Organization (ARIPO), accepts regional patent applications, or grants patents, which have the same effect as applications filed, or patents granted, in the member States of that region.
Further, any resident or national of a Contracting State of the Patent Cooperation Treaty (PCT) may file an international application under the PCT. A single international patent application has the same effect as national applications filed in each designated Contracting State of the PCT. However, under the PCT system, in order to obtain patent protection in the designated States, a patent shall be granted by each designated State to the claimed invention contained in the international application. Further information concerning the PCT is available.
Procedural and substantive requirements for the grant of patents as well as the amount of fees required are different from one country/region to the other. It is therefore recommend that you consult a practicing lawyer who is specialized in intellectual property or the intellectual property offices of those countries in which you are interested to get protection.